Supreme Court declines Trump request to take up DACA controversy now

Hundreds gathered in front of the U.S. Supreme Court to show their support for President Obama’s immigration executive action as the Court hears oral arguments on the action in Washington, D.C., on April 18, 2016.
Lexey Swall

The Supreme Court on Monday declined to enter the national controversy over “Dreamers,” turning down the Trump administration’s request to immediately review lower court decisions that keep in place the program that protects undocumented immigrants brought here as children from deportation.

President Trump announced in September that he would let the program expire in March, unless Congress acted. Efforts on Capitol Hill to revive the Deferred Action for Childhood Arrivals program, known as DACA, as part of a broader deal on immigration policy have failed so far.

Federal district court judges in California and New York have issued nationwide injunctions against ending the program, siding with states and organizations challenging the administration’s rescission. The court orders effectively block the Trump administration from ending the program on March 5, as planned.

No court of appeals has reviewed those decisions, and it would have been exceedingly rare for the Supreme Court to take up a case without that interim step. In the past, the court has granted such cases only in matters of grave national importance, such as the controversy over President Richard Nixon’s White House tapes or solving the Iranian hostage crisis.

The litigation now will take its usual course, and it will likely be next term before the issue could return to the Supreme Court. The White House and Congress in the meantime can continue to search for a political resolution.

The Trump administration skipped the more usual procedure of asking the high court to stay the lower court decisions. Instead, it said the court should accept the case now because it raised such important legal questions about presidential authority.

“The district court’s unprecedented order requires the government to sanction indefinitely an ongoing violation of federal law being committed by nearly 700,000 aliens — and, indeed, to confer on them affirmative benefits,” Solicitor General Noel J. Francisco wrote in the government’s brief to the court.

U.S. District Judge William Alsup in San Francisco ruled in December that challengers are likely right that the way the administration is ending the program violated the Administration Procedure Act, because it is arbitrary and capricious.

A nationwide injunction is warranted, Alsup said, because “our country has a strong interest in the uniform application of immigration law and policy.” Earlier this week, a district judge in New York came to an almost identical conclusion.

The solicitor general told the court that the administration was ending the program because of the threat of legal challenges from a coalition of states led by Texas, and a belief that the program instituted during the Obama administration could not be successfully defended in court.

The Department of Homeland Security, Francisco said, “opted to wind down DACA after reasonably concluding that the policy was likely to be struck down by courts and indeed was unlawful.”

The administration had proposed to end the program next month. But the injunctions require the department to continue to accept renewal applications from those protected from deportation. The administration is not required to accept new applications.

Challengers, led by California Attorney General Xavier Becerra, a Democrat, and the board of regents of the state’s universities, said the current administration was ignoring past findings by the government that the program was legal.

“Without the injunction, thousands of DACA recipients would lose their work authorization and deferred action status in March 2018 — and thousands more the next month, and each succeeding month, until nearly three-quarters of a million young Americans would be shunted back into the shadows of our society,” Beccera wrote in his brief.

And a separate brief from the California Board of Regents noted how unusual it would be for the court to accept the case without the benefit of review from lower courts, a process called “certiorari before judgment.”

“In the very rare instances — the last almost 30 years ago — in which the court has granted certiorari before judgment in this situation, it has done so in response to an urgent, overwhelming need for immediate resolution of a legal issue,” the brief said

The case is Department of Homeland Security v. California Board of Regents.

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